Consultation Paper on the General Law of the Landlord and Tenant

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CHAPTER 1THE RELATIONSHIP OF LANDLORD ANDTENANTA Historical Background1.01 The relationship of landlord and tenant is a concept with asomewhat confused history. At first sight it might appear to havesome connection with the old feudal relationship of landlord andtenant, which was based on the concept of tenure. 1 Such feudalconcepts did become part of Irish law as the common law wasimposed after the twelfth century and finally established here duringthe seventeenth century. 2 However, the tenure recognised by thefeudal system was confined to what is referred to in modern times as“freehold” tenure. The relationship of landlord and tenant as it hasbeen recognised in more recent times was never part of the feudalsystem. Indeed, when landowners began centuries ago to permit otherparties to occupy and use their land, usually in return for payment of arent, no form of tenure was regarded as being created. Rather thearrangement was considered to be a purely contractual one betweenthe parties, the grantor and the grantee. The grantee was not regardedas having any “estate” or “interest” in the land, so that it could not beassigned to another person or inherited by a successor on thegrantee’s death. 31.02 As the popularity of such arrangements increased it came tobe recognised that, notwithstanding their essentially contractualnature, they did involve features bearing similarity to the feudalconcepts of tenure and estates. The usual requirement of the granteeto pay rent to the grantor had obvious similarity to the feudal notionof “service” to be provided by a tenant to his lord. Of even greater123See Lyall Land Law in Ireland (2 nd ed Round Hall Sweet & Maxwell2000) Chapter 3; Wylie Irish Land Law (3 rd ed Butterworths 1997) Chapter2.See Wylie op cit Chapter 1.See further Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths1998) Chapter 1.5
significance was the recognition by the courts on both sides of theIrish Sea 4 that the grantee under such a contractual arrangement wasentitled to protect it by action in court. In particular, protection fromeviction by either the grantor or by any third party could be obtainedby bringing an action to recover possession of the land. This came tobe known as an action of ejectment, 5 which remains to this day afundamental feature of our landlord and tenant law. 61.03 The consequences of such developments may besummarised as follows. 7 Since the tenant was entitled to protect thepossession of the land granted by an action of ejectment against anyperson dispossessing the tenant, the tenant came to be regarded ashaving an “estate” or “interest” in the land. 8 Eventually it came to berecognised that the rights and obligations created by the original grant(lease or tenancy) attached to the estates or interests of the originalparties (the landlord and tenant) and could pass, under the doctrine of“privity of estate”, to their respective successors in title. 9 Rather morecontroversially, 10 it was also recognised that the relationship oflandlord and tenant involved a form of tenure, albeit different in somerespects from the old feudal (freehold) tenure, namely leaseholdtenure. 11 Thus the rent paid by a leasehold tenant was also regarded4567891011In England this development occurred in the second half of the fifteenthcentury: see Megarry and Wade The Law of Real Property (6 th ed Sweet &Maxwell 2000) Appendix. It was extended to Ireland with theestablishment of the common law system in the seventeenth century: seeauthority cited in footnote 2 above.See Furlong The Law of Landlord and Tenant as Administered in Ireland(2 nd ed Edward Ponsonby 1869) Volume II Book VI Chapter II; HarrisonThe Law and Practice relating to Ejectments in Ireland (Hodges Figgis1903) Chapter 1. See also Dowling Ejectment for Non-payment of Rent(SLS Legal Publications (NI) 1986).See Chapter 15 below.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraph 1.04.See further paragraph 1.15 below.See Chapters 2 and 3 below.Cf Coke Upon Littleton (19 th ed 1832) paragraph 63a (in favour ofapplication of the notion of tenure) and Challis The Law of Real Property(3 rd ed Butterworths 1911) at 65 (against application).See Megarry and Wade op cit paragraph 3-015. Recognition of thisposition was given by the Westminster Parliament so far as Ireland was6
Page 6 and 7: Landlord and Tenant Law Working Gro
Page 8 and 9: E Landlord’s Identity and Agent .
Page 10: INTRODUCTION1. This is the second <
Page 21 and 22: after its enactment there were nume
Page 23 and 24: Commission’s preliminary conclusi
Page 25 and 26: 1.15 It might be thought that the I
Page 27 and 28: preliminary conclusion that any re-
Page 29 and 30: like lodgers, 83 hotel guests, 84 s
Page 31 and 32: landlord and tenant.” 96 This see
Page 33 and 34: the nature of a tenant’s interest
Page 35 and 36: parties an intention which they nev
Page 37 and 38: management of the said Railway arch
Page 39 and 40: the courts’ desire in the past to
Page 42 and 43: CHAPTER 2FORMALITIES2.01 This chapt
Page 44 and 45: Commission has previously drawn att
Page 46 and 47: paragraph, such an arrangement woul
Page 48 and 49: Deasy’s Act should be dropped fro
Page 50 and 51: the judges of the old Exchequer Cha
Page 52 and 53: within the purview of the Landlord
Page 54 and 55: seems to be inconsistent with the c
Page 56 and 57: E Surrenders2.21 Section 7 of Deasy
Page 58 and 59: premises, the alternative of a new
Page 60 and 61: espect to the part not surrendered.
Page 62 and 63: CHAPTER 3SUCCESSORS IN TITLE3.01 Th
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section 10 of the Conveyancing Act
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prescribe that a particular tenant
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not clear how far statute law has c
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was not resolved until the enactmen
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the doctrine of estoppel. 57 On the
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eferred to as a severance of the in
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need to have statutory provisions t
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the premises occupied by the sub-te
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CHAPTER 4FIXTURES4.01 The law of
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tenant. Often an item installed in
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A Common Law4.09 Originally at comm
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parties’ agreement. Furthermore,
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fixtures. Given that this is subjec
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(viii) it should also be made clear
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(2) consumer protection; (3) defaul
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subject was discussed in the <stron
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already covered by modern legislati
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CHAPTER 6LANDLORD’S OBLIGATIONS6.
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for sale. 14 This matter is again o
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may not be a point of much substanc
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how far the Irish courts will follo
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6.13 To some extent the very limite
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of the Residential Tenancies Bill 2
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6.19 It was mentioned earlier that
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E Landlord’s Identity and Agent6.
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CHAPTER 7TENANT’S OBLIGATIONS7.01
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CHAPTER 8RENT AND OTHER PAYMENTS8.0
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8.04 Section 42 of Deasy’s Act do
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until the last gale day of the curr
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one. 33 Disputes as to the new rent
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overholding. 47 The Commission prov
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on the landlord’s breach of repai
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Notwithstanding use of the title
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CHAPTER 9SERVICE CHARGES9.01 It has
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in service charges, so as to ensure
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namely permissive, voluntary, ameli
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section 42 implied obligation shoul
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sensible provisions, which are usua
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against “unreasonable withholding
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obligations by the landlord, 50 is
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(e)(f)(g)Should the remedy apply to
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provisionally recommends that the p
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whether, in the absence of an expre
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(e)(f)Tenant to be liable for incre
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12.03 Merger is a doctrine of gener
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eiterates the recommendation of leg
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should be any distinction as to the
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12.11 There is one further, somewha
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CHAPTER 13NOTICE13.01 Service of a
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comprehensive and exhaustive, in th
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D Sub-Tenants13.08 It may be conven
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13.11 As indicated in the recommend
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very small rent. The Residential Te
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obligation by any tenant unless exc
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y one joint tenant is sufficient to
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“reasonable time” may vary from
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ent and other payments may be accum
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obtainable from the court in which
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mortgage it should have power to de
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a tenancy of a dwelling could not b
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seems to have fallen into disuse. 1
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is sufficient. 32 It is questionabl
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CHAPTER 16LIMITATION OF ACTIONS16.0
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1707 Administration of Justice Act
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the occupier of the land in questio
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set of statutory provisions governi
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comprehensively with part assignmen
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(ii) take the form of a scheme of
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y the landlord thereby making it cl
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Chapter 11 Insurance18.73 The Commi
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18.82 The Commission recommends tha
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the original sub-tenancy or mortgag
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APPENDIXLIST OF LAW REFORM COMMISSI
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Working Paper No 1
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Report on the Liability in Tort ofM
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Eleventh (Annual) Report (1989) (Pl
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Report on Occupiers’ Liability (L
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Report on Privacy: Surveillance and
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Consultation Paper on the General Law of the Landlord and Tenant

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